Vu & Schwartz on Hoffman Plastic

Nhan Vu and Jeff Schwartz (photo left) (California Western) have just posted on SSRN their article (forthcoming Berkeley JELL) Workplace Rights and Illegal Immigration: How Implied Repeal Analysis Cuts Through the Haze of Hoffman Plastic. Its Predecessors and Its Progeny.  Here's the abstract:

This piece focuses on the Supreme Court's decision in Hoffman Plastic Compounds, Inc. v. National Labor Relations Board. In Hoffman, the Court held that undocumented workers discharged in violation of the National Labor Relations Act could not recover back pay because the Immigration Reform and Control Act of 1986 (the IRCA) trumped the National Labor Relations Act (the NLRA). This holding threatened the rights of undocumented workers in other contexts, for if the IRCA could trump the NLRA, then potentially it could be cited as the basis for a broader scale-back of immigrant rights.

We argue that the Supreme Court reached the wrong result in Hoffman because it did not analyze the interaction of immigration and labor law at issue in the case through an implied repeal paradigm. Moreover, we contend that application of this framework in the case, and in those cases that preceded it, would have lent clarity to this body of law and laid a solid groundwork for lower court judges, who have so far been unsuccessful in grappling with Hoffman's dubious reasoning.

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